Locke’s Liberal Theory of Public Reason

Gerald Gaus

I LOCKEAN RIGHTS AND DISAGREEMENT

It would seem that of all the classical social contract theories — Hobbes’, Locke’s,

Rousseau’s and Kant’s — Locke’s has least to do with the idea that social and

political life requires constructing a sphere of public reason, and so to some extent,

setting aside one’s private judgment. Indeed, many read Locke as inclining toward a

sort of anarchism, in which each is guided exclusively by her own judgment, rather

than in the direction of creating a public sphere defined by common reasoning. This

interpretation appears, at least at first inspection, well grounded in familiar

passages.1 All individuals, says Locke, “are naturally in … a state of perfect freedom

to order their actions and dispose of their possessions and persons, as they think fit,

within the bounds of the law of nature; without asking leave, or depending upon the

will of any other man” (ST: §4).2 This is also a condition of “equality, wherein all the

power and jurisdiction is reciprocal, no one having more than another; there being

nothing more evident, than that creatures of the same species and rank,

promiscuously born to all the same advantages of nature, and the use of the same

faculties, should also be equal one amongst another without subordination or

subjection” (ST: §4). However, Locke’s state of nature, while one of natural freedom,

is not one of ”licence” in which one can do whatever one wishes. “The state of

nature has a law of nature to govern it, which obliges every one: and reason, which

is that law, teaches all mankind, who will but consult it, that being all equal and

independent, no one ought to harm another in his life, health, liberty, or

possessions” (ST: §6). In addition to each possessing natural rights, each has the

right to enforce the law of nature: “that all men may be restrained from invading

others rights, and from doing hurt to one another, and the law of nature be

observed, which willeth the peace and preservation of all mankind, the execution of

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the law of nature is, in that state, put into every man’s hands, whereby every one has

a right to punish the transgressors of that law to such a degree as may hinder its

violation” (ST: §7).

The question for interpreters of Locke is how conflictual such a condition is.

Because the state of nature is a condition of perfect equality in which no one has

superior authority to determine the dictates of natural law and decide on

appropriate enforcement, each has an equal right to do so. But each being a judge in

his own case — having the right to interpret and enforce the law of nature — leads

to great “inconveniencies”: “self love will make men partial to themselves and their

friends; and on the other side, that ill-nature, passion, and revenge will carry them

too far in punishing others; and hence nothing but confusion and disorder will

follow” (ST: §13). Locke, though not all his contemporary followers, grants that

“civil government is the proper remedy for the inconveniencies of the state of

nature” (ST: §13): government employs political power, “making laws with penalties

of death, and consequently all less penalties for the regulating and preserving of

property, and of employing the force of the community, in the execution of such

laws” (ST: §3). However, “Every man being, as has been showed, [is] naturally free,

and nothing being able to put him into subjection to any earthly power, but only his

own consent” (ST: §119). Thus only if individuals actually consent to form a political

society and institute a government are they bound to obey political authority.

What we might call the “anarchist strain” among Lockean interpreters stresses

either (i) that these inconveniencies could be handled within the state of nature or,

(ii) even if a central state organization is required to facilitate coordination, it is not

really essential that people consent to obey it. The first option examines various

ways that organizations, such as private enterprise enforcement and adjudication

firms, could arise within the state of nature to solve the problems of disagreement.3

The second strain argues that, while legitimate governments could arise, widespread

consent to obey is neither to be expected, nor is it very important. Because, this

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interpretation runs, most people have not, in fact, consented to government, most

are not bound to obey; most continue to have their full rights to interpret and

enforce the law of nature as their own judgment dictates. 4 Their original

jurisdictional rights are retained. This does not mean that they will disobey the law.

Given all the relevant moral considerations, this type of Lockean anarchist may well

decide that it is best to do as the current civil government directs (say, because these

common directions allow individuals to coordinate their activity). The critical point

is that our Lockean anarchist does not perform an act simply because the law says

she must — because she is obligated to obey. She decides on the right thing to do,

taking account of the fact that there is a legal directive, which many will follow, and

this may produce moral benefits. The definitive feature of this type of Lockean

anarchism is that the individual retains her full right of private judgment even if there

is a state that gives legal directives. She may do as others do and obey, but only if

her own judgment instructs her to.

II THE INCONVENIENCE OF RETAINING PRIVATE JUDGMENT

Lockean anarchists typically see their proposals as friendly amendments to Locke,

perhaps noting that he was rather too quick to jump to government as a solution to

the “inconveniencies” of the state of nature, though his basic moral outlook remains

pretty much intact. 5 For them, it is the theory of rights that is the core of Locke’s

theory, not his analysis of the inevitable disputes that arise from differing private

judgment: the important thing is to act on your rights, and do what you think is

demanded by morality. So long as people are rational, and see important benefits in

cooperation, they should be able to both act morally and cooperate with each other. I

believe that the problem of conflicting private judgment about morality is much

more severe than anarchistically-inclined Lockeans believe. Only a more radical

solution — one that creates an umpire or judge that gives an authoritative public

judgment, can solve Locke’s problem.

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That problem is (1) “Man being born … with a title to perfect freedom, and

uncontrolled enjoyment of all the rights and privileges of the law of nature, equally

with any other man … hath by nature a power, not only to preserve his property,

that is, his life, liberty, and estate, against the injuries and attempts of other men; but

to judge of and punish the breaches of that law in others, as he is persuaded the offence

deserves, even with death itself, in crimes where the heinousness of the fact, in his opinion,

requires it” (ST: §87, emphasis added). (2) But we judge differently. Thus not only are

we led into conflict about whether or not punishment is appropriate, but we have

conflicting judgments about what our rights are. It is important that our concern is

not simply about coordination on what Locke calls “indifferent” matters (FLT: 30). I

might disagree with you about which side of the road we should drive on, but we

both can clearly see that we need to coordinate, and so I will be ready to do what

most others do, rather than insist on what I think is best. The law certainly can serve

as a simple coordination device here: the state announces through a law that

“Drivers shall drive on the right side of the road” and even if I much prefer the left

side, I will go along. This is simply a matter of interests. In matters of justice or

natural rights one’s moral sentiments are evoked; a good education, Locke stressed,

teaches a person to detest the vice of injustice as an ingrained habit (TCE: 101). So,

once a person has formed a judgment of justice, compromising with views she

considers unjust is apt to be difficult and unstable. Judgments of justice involve

moral emotions and ingrained habits.

The Lockean anarchist would have us think that she can secure coordination

benefits despite this. Thus, as she would have it, our Lockean anarchist could see

that if some law, which she thinks violates natural rights (but not in too grievous a

way), is critical in helping to coordinate effectively with others, she may rationally

act on it. While maintaining her judgment that the law is unjust, she could still see

the coordination benefits of identifying the contours of our rights and stopping

cycles of punishment and counter-punishment; thus she may do as the law directs

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even though, in her view, these are not the just boundaries of rights. But once we

have taken seriously that one believes that the other is acting unjustly (not just

counter to my interests), and so it is apt to invoke one’s “detestation of this shameful

vice” (TCE: 102), this looks less likely. Given the importance of acting as one judges

morality requires, we might expect anarchistic Lockeans, who also recognize the

importance of coordinating on what morality requires, to have the following

ordering of outcomes: 1st — we coordinate on what I think is just; 2nd — I act alone on

what I think is just; 3rd — we coordinate on what you think is just; 4th — I act on what

you think is just while you act on what I think is just (not a very attractive option!).

This is the ordering of people who care most about acting as morality requires and

detest the vice of injustice, but also value coordination. As Figure 1 shows, if

rational, such people will fail to coordinate.

Betty

A

B

Alf

A

3rd 1st

2nd 2nd

B

4th 4th

1st 3rd

Figure 1: Where Commitment to Morality Prevents Coordination

In this game the sole equilibrium is that Alf acts on his view (A), and Betty acts on

her view (B), of justice. At either of the coordination solutions (when both play A or

both play B), one of the parties would do better by changing her move, and acting on

her favored interpretation of natural law. Thus they have no real interest in

coordinating, even though they see considerable value in coordinating. As Locke

says, in this case “confusion and disorder will follow” (ST: §13) — a case in which

each is devoted to her private judgment about morality. In order to coordinate at

least one of the parties must prefer coordination with the other to acting alone as she

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thinks is right: doing what the other believes to be right for the sake of coordination.

Such an agent places great value on coordination, and less value on doing what her

private judgment deems the right thing. It is hard to believe that people devoted to

natural rights would have such valuings.

III EXCLUDING PRIVATE JUDGMENT IN FAVOR OF PUBLIC JUDGMENT

I am not, of course, maintaining that this was Locke’s analysis, though he certainly

did believe in a fundamental distinction between acting from morality and acting

from interests, and thought that a good education instilled strong reactions to acting

unjustly. The point, rather, is that Lockean anarchists underestimate the difficulties

in achieving coordination on what the law of nature requires when each has arrived

at a discordant private judgment about it. Even two who appreciate the important

benefits of coordination on the requirements of the law of nature may not be able to

secure it. However, if individuals unite in a “political society” effective coordination

and order can be achieved. In a political society

every one of the members hath quitted his natural power, resigned it up into the hands of the

community in all cases that excludes him not from appealing for protection to the law

established by it. And thus all private judgment of every particular member being excluded, the

community comes to be umpire by settled standing rules, indifferent, and the same to all

parties; and by men having authority from the community, for the execution of those rules,

decides all the differences that may happen between any members of that society concerning

any matter of right…

…. And this puts men out of a state of nature into that of a commonwealth, by setting up

a judge on earth, with authority to determine all the controversies, and redress the injuries

that may happen to any member of the commonwealth: which judge is the legislative, or

magistrate appointed by it.

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… for the end of civil society being to avoid and remedy these inconveniencies of the

state of nature, which necessarily follow from every man being judge in his own case, by

setting up a known authority, to which every one of that society may appeal upon any injury

received, or controversy that may arise, and which every one of the society ought to obey (ST:

§§87, 89, 90. emphasis added).

What, then, does Locke mean by “all private judgment of every particular

member being excluded?” It seems insufficient to interpret this as simply claiming

that individuals in a political society do not to act on their private judgment but,

instead, obey the law. This implies that, while they may do as the law says, they still

maintain their full rights to authoritatively judge what natural law requires. But then

we would not be in a position very different than Figure 1: an individual’s reasoning

would easily incline him to disobey the law when, on his view, it is not just.

As Locke insists in the above passage, what is critical is that the government has

the “authority to determine all the controversies” — that a citizen recognizes the

magistrate’s judgments as authoritative even if, we might say, her private opinion

leads to a different result. The essence of the Lockean contract is that a citizen gives

up, not her private opinion as to what natural law requires, but its claim to

authority. In a political society one has no authority to insist that others conform to

one’s view of the law of nature, or to enforce one’s judgment. Indeed, it is not even

authoritative for oneself: if one sees the magistrate as authoritative on this matter,

one accepts that his judgment, not one’s own, determines what ought to be done.

Thus, the “end of civil society being to avoid and remedy these inconveniencies of

the state of nature, which necessarily follow from every man being judge in his own

case, by setting up a known authority, to which every one of that society may appeal

upon any injury received, or controversy that may arise, and which every one of the

society ought to obey” (ST: §90, emphasis added).6 It is important that the authority

must be impartial: “In the state of nature there wants a known and indifferent

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[impartial] judge, with authority to determine all differences according to the

established law: for every one in that state being both judge and executioner of the

law of nature, men being partial to themselves, passion and revenge is very apt to

carry them too far, and with too much heat, in their own cases” (ST: §125). Anyone

interested in correctly determining the law of nature and applying it to resolve

disputes should recognize her own tendency to self-bias, and so consider her own

opinion of the merits of her case to be a generally unreliable guide, for herself as well

as others.

There is nothing odd about the stance Locke requires of us — that we have an

opinion but renounce its authority. Consider a prosaic example, such as a game of

baseball. The batter hits the ball, runs to first base, and the impartial umpire calls her

out. In her opinion she was safe, and perhaps she even gives the umpire an

exasperated look. But she knows that her opinion counts for naught — not only does

it fail to be directive for others, it is not directive for her. The only judgment that

really matters is the umpire’s.

Our baseball example illuminates another feature of public authority: we must

know who the umpire is. Locke repeatedly stresses the importance of setting up a

known authority. It is not enough to recognize the necessity of an impartial judge

with the authority to decide disputes: we must be able to agree on who has that

authority. “For if this remains disputable, all the rest will be to very little purpose”

(FT: §106).7 Thus the end of civil society is a publicly known authority who can

resolve our disputes about morality by providing public, determinate, judgments as

to the boundaries of our rights and who has abridged the rights of others.

IV DRAWING LIBERAL BOUNDARIES: REASONABLE DISPUTES ABOUT NATURAL LAW

What, then, are the bounds of the competency of public authority in Locke’s theory?

In contrast to Hobbes, who spends so much effort seeking to establish that limits and

bounds cannot be set to the authority of the sovereign, Lockean theory is all about

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setting the bounds of public judgment and its authority. That is why Locke’s is a

liberal theory of public reason: within the bounds of certain sorts of disputes, the

reasoning of the public authorities is definitive, but outside of these bounds the

judgment of the magistrate is simply one more private judgment.

Because individuals in the state of nature disagree about the interpretation of the

law of nature, we have seen that they require a public judgment with authority to

umpire their disputes. However, Locke’s theory of revolution supposes that, while

the range of disagreement among rational persons is wide, it is not unlimited. At

some point a citizen could well conclude the government has exceeded its justified

authority by giving decisions that cannot plausibly be construed as a good-faith

attempt to umpire disputes about the laws of nature. In cases of individual dissent,

where the citizen believes that that the civil government is forcing him to act against

his conscience, Locke recommends civil disobedience. “What if the magistrate

should enjoin any thing by his authority, that appears unlawful to the conscience of

a private person? ... I say, that such a private person is to abstain from the actions

that he judges unlawful; and he is to undergo the punishment, which is not unlawful

for him to bear; for the private judgment of any person concerning a law enacted in

political matters, for the public good, does not take away the obligation of that law,

nor deserve a dispensation” (FLT: 43). However, Locke is convinced that lone

dissent will not produce civil instability: the “the body of the people do not think

themselves concerned in it, as for a raving madman, or heady malecontent, to

overturn a well-settled state, the people being as little apt to follow the one, as the

other” (ST: §208). However, if the overwhelming majority becomes convinced “in

their consciences, that their laws, and with them their estates, liberties, and lives are

in danger, and perhaps their religion too,” “if a long train of abuses, prevarications

and artifices, all tending the same way, make the design visible to the people, and

they cannot but feel what they lie under, and see whither they are going; it is not to

be wondered, that they should then rouse themselves, and endeavour to put the rule

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into such hands which may secure to them the ends for which government was at

first erected” (ST: §§209, 225). In these cases the people “universally have a persuasion,

grounded upon manifest evidence, that designs are carrying on against their liberties, and the

general course and tendency of things cannot but give them strong suspicions of the evil

intention of their governors” (ST: §230, emphasis added).

For Locke, then, there is some range of reasonable interpretative dispute that is

defined by the convergence of judgments of the great body of people about the

plausible interpretations of natural law. We might say that the Lockean public

sphere is defined by a certain consensus about the broad requirements of morality;

within this broad consensus we have a wide variety of disputes, especially about the

application to specific cases. So long as the government remains within this broad

consensus it will be seen by the great majority of citizens as performing its proper

role of umpiring disputes generated by disagreements in private judgments about

the law of nature; within its proper scope, the public authority of the umpire

excludes all private judgment about the requirement of morality. However, when in

the view of the citizens the decisions of government are systematically outside of the

range of reasonable judgments — it makes decisions that our private judgments

converge upon in deeming manifestly immoral — the people will conclude that it

violates their conscience and is tyrannical. In the end, of course, they must rely on

their private judgments about this.8 We might sum up Locke’s view in five critical

theses.

1. Individuals employing their private judgment disagree about the requirements

of the law of nature, especially in cases in which one’s interests are involved.

2. Consequently, a peaceful cooperative social life, in which people have a

common understanding of their rights, requires a known and impartial public

umpire to provide a public definitive, authoritative, resolution of the disputes

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between citizens. This is an authoritative public judgment that excludes the

authority of conflicting private judgments.

3. The range of the authority of the umpire is not unlimited; the umpire only has

the authority to make impartial judgments within the bounds of reasonable

dispute about the law of nature.

4. The boundary of reasonable disputes is determined by the general consensus

of the private judgments or reasoning of citizens.

5. When the umpire acts outside these bounds it has no public authority.

V DRAWING LIBERAL BOUNDARIES: THE PUBLIC AND PRIVATE SPHERES

One important liberal feature of Locke’s view, then, is that public authority is limited

by natural rights. But in contrast to the anarchist, who insists that each individual’s

private judgment about her rights is determinative for her (and so essentially denies

the existence of public authority), on Locke’s view an umpire is required to publicly,

authoritatively, interpret natural rights. And this requires citizens to set aside (as

non-authoritative) their private judgments on these matters. Nevertheless citizens do

not renounce making private determinations: they remain active in ensuring that the

umpire does not become a threat to the rights of citizens. In normal contexts private

judgment must be self-effacing, but it always remains, ready to assert itself should

the proper bounds of public authority be crossed.

A second important boundary for any liberal theory of political life is that

between the public and the private — concerns that are the proper scope of public

authority and those matters that are private, and over which the state has no

authority. Locke identifies a clear boundary to public authority:

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The commonwealth seems to me to be a society of men constituted only for the procuring,

preserving, and advancing their own civil interests.

Civil interest I call life, liberty, health, and indolency of body; and the possession of

outward things, such as money, lands, houses, furniture, and the like.

It is the duty of the civil magistrate, by the impartial execution of equal laws, to secure

unto all the people in general, and to every one of his subjects in particular, the just

possession of these things belonging to this life. If any one presume to violate the laws of

public justice and equity, established for the preservation of these things, his presumption is

to be checked by the fear of punishment, consisting in the deprivation or diminution of those

civil interests, or goods, which otherwise he might and ought to enjoy….

Now that the whole jurisdiction of the magistrate reaches only to these civil

concernments; and that all civil power, right, and dominion, is bounded and confined to the

only care of promoting these things…. (FLT: 10).

These are the ends of government, and securing them is the reason free people enter

it: no others should be admitted (SLT: 119). These define the public, political, sphere.

Locke is especially concerned with demonstrating that religious matters lie outside

the political realm. “I esteem it above all things necessary.” Locke insisted, “to

distinguish exactly the business of civil government from that of religion, and to

settle the just bounds that lie between the one and the other. If this be not done, there

can be no end put to the controversies that will be always arising between those that

have, or at least pretend to have, on the one side, a concernment for the interest of

men’s souls, and, on the other side, a care of the commonwealth” (FLT: 9-10).

Outside of matters of civil interests and morality, the government has no authority

— the judgment of the magistrate does not stand for public reason: “as the private

judgment of any particular person, if erroneous, does not exempt him from the

obligation of law, so the private judgment, as I may call it, of the magistrate, does

not give him any new right of imposing laws upon his subjects [in matters such as

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religion], which neither was in the constitution of the government granted him, nor

ever was in the power of the people to grant” (FLT: 45). On the other hand, churches

are voluntary organizations, and thus have no political authority over their members

or right to use force (FLT: 17, 19). Thus, Locke insists, “the church itself is a thing

absolutely separate and distinct from the commonwealth. The boundaries on both

sides are fixed and immoveable” (FLT: 21).

VI LOCKE AND RAWSLIAN PUBLIC REASON

Locke, then, manifestly and repeatedly distinguishes the realm of the civil, where the

public authority of the umpire about rights and core civil interests excludes private

judgment, from the religious sphere, in which each rightfully acts on her private

judgment, and where the judgment of the umpire is just one more opinion — it has

no claim to public authority. Let us inquire further into the nature of this “fixed and

immoveable” boundary between the civil and the religious.

One possibility is that Locke’s entire theory of public authority, which I have

explicated thus far, depends on purely secular arguments about civil interests and

abjures all appeal to religious doctrines. If religion is a purely private matter, we

might reason, it cannot enter into the case for a public authority; the argument for

public authority must be premised only on the “worldly welfare of the

commonwealth” (FLT: 54). This would be what John Rawls would call a

“freestanding,” secular, political argument.9 Rawls distinguishes two phases of a

public reason justification.10 The first phase articulates and defends a theory of

political right on the basis of a “freestanding” argument — one which is based

simply on the shared, secular, reasons of all citizens, which ground the public

sphere. If, as Rawls and Locke both recognize, we have deep and enduring

disagreements about matters such as religion, then it looks as if we must “bracket”

or set aside these reasons when defending the common, political, realm. In the

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second stage of justification, which Rawls calls “full justification,” citizens draw on

their own religious convictions, and beliefs about the good, to see if they can find

support in these doctrines for the conclusions of the freestanding political argument.

If many different religious doctrines support the freestanding political theory, then

we can say that there is an “overlapping consensus” on the political theory. When

such an overlapping consensus obtains, citizens are not torn between the demands

of the political and the religious, and so we can expect a more stable compliance

with the public laws.

Now it is quite clear that Locke engages in extensive argumentation that we

would today classify under “overlapping consensus.” Throughout his Letters on

Toleration Locke argues that the limitation of the magistrate’s authority to civil

interests is endorsed from religious perspectives. Thus, in arguing that the civil

government has no authority over belief, Locke appeals to the nature of true

religious belief: “The care of souls cannot belong to the civil magistrate, because his

power consists only in outward force: but true and saving religion consists in the

inward persuasion of the mind, without which nothing can be acceptable to God”

(FLT: 11). The aim, then, is to demonstrate to religious citizens that their religion

does not conflict with the government observing a ”fixed and immoveable”

boundary between the civil and religious; the religious should welcome this, since

true religion and salvation cannot be achieved through the tools of law. One who

accepts the law acknowledges that one’s private opinion about morality is without

authority, but the law does not determine one’s private opinion. And salvation

depends on genuine private belief. In any event, even if government could shape

belief, a religious person should realize the folly of giving any government such

power.

For, there being but one truth, one way to heaven; what hopes is there that more men would

be led into it, if they had no other rule to follow but the religion of the court [ruler], and were

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put under a necessity to quit the light of their own reason, to oppose the dictates of their own

consciences, and blindly to resign up themselves to the will of their governors, and to the

religion which either ignorance, ambition, or superstition had chanced to establish in the

countries where they were born? In the variety and contradiction of opinions in religion,

wherein the princes of the world are as much divided as in their secular interests, the narrow

way would be much straitened; one country alone would be in the right, and all the rest of

the world put under an obligation of following their princes in the ways that lead to

destruction: and that which heightens the absurdity, and very ill suits the notion of a deity,

men would owe their eternal happiness or misery to the places of their nativity (FLT: 12-13).

Again and again, Locke employs a type of “overlapping consensus” strategy to

show that, from within the perspective of religious citizens, the immutable boundary

between civil authority and private freedom of religion is justified. Showing that

religious reasoning supports the political doctrine of public reason is critical, as

Locke acknowledges that “obedience is due in the first place to God, and afterwards

to the laws” (FLT: 43). Because “the principal and chief care of every one ought to be

of his own soul first, and, in the next place, of the public peace” (FLT: 44), no

reasonable person would respect the public/private boundary, no matter how

important for civil peace, if it endangers her soul. However, while the “overlapping

consensus” element of Rawlsian public reason is manifestly important to Locke,

Jeremy Waldron has demonstrated that Locke cannot be attributed with a

“freestanding,” secular, argument for his political doctrine.11 On Waldron’s careful

reading, Locke’s very conception of human equality, upon which his political

doctrine is based, requires appeal to Christian belief. 12 To take a different but

fundamental element, consider the idea of morality, which it is the chief task of the

civil magistrate to publicly interpret. For the public realm to be thoroughly secular, it

must be the case that full knowledge of the law of nature can be achieved through

secular reason alone.13 But Locke denies this; not only does he think that the common

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person — “the vulgar” —cannot, from secular premises alone, reason to all the

conclusions of morality, but even philosophers fail:

it is too hard a task for unassisted reason to establish morality in all its parts, upon its true

foundation, with a clear and convincing light. And it is at least a surer and shorter way, to the

apprehensions of the vulgar, and mass of mankind, that one manifestly sent from God, and

coming with visible authority from him, should, as a king and law-maker, tell them their

duties; and require their obedience; than leave it to the long and sometimes intricate

deductions of reason, to be made out to them. Such trains of reasoning the greatest part of

mankind have neither leisure to weigh; nor, for want of education and use, skill to judge of.

We see how unsuccessful in this the attempts of philosophers were before our Saviour’s time.

How short their several systems came of the perfection of a true and complete morality, is

very visible. And if, since that, the christian philosophers have much out-done them: yet we

may observe, that the first knowledge of the truths they have added, is owing to revelation:

though as soon as they are heard and considered, they are found to be agreeable to reason;

and such as can by no means be contradicted (RC: 139-40).

And thus “it is plain, in fact, that human reason unassisted failed men in its great

and proper business of morality. It never from unquestionable principles, by clear

deductions, made out an entire body of the ‘law of nature.’ And he that shall collect

all the moral rules of the philosophers, and compare them with those contained in

the New Testament, will find them to come short of the morality delivered by our

Saviour, and taught by his apostles; a college made up, for the most part, of

ignorant, but inspired fishermen” (RC: 140). Moreover, not only is purely secular

reason unable to grasp the full content of morality, but Locke insists that

philosophical investigation fails to account for the authority and obligation of

morality.

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Did the saying of Aristippus, or Confucius, give it an authority? Was Zeno a law-giver to

mankind? If not, what he or any other philosopher delivered, was but a saying of his.

Mankind might hearken to it, or reject it, as they pleased; or as it suited their interest,

passions, principles or humours. They were under no obligation; the opinion of this or that

philosopher was of no authority…. These incoherent apophthegms of philosophers, and wise

men, however excellent in themselves, and well intended by them; could never make a

morality, whereof the world could be convinced; could never rise to the force of a law, that

mankind could with certainty depend on (RC: 142-3).

Thus “a body of ethics, proved to be the law of nature, from principles of reason,

and teaching all the duties of life… nobody will say the world had before our

Saviour’s time” (RC: 143). The mistake of the secularist is in thinking of the laws of

nature “that because reason confirms them to us, we had the first certain knowledge

of them from thence; and in that clear evidence we now possess them. The contrary

is manifest, in the defective morality of the gentiles, before our Saviour’s time; and

the want of reformation in the principles and measures of it, as well as practice” (RC:

145-6).

Morality, then, bridges the secular-religious divide (FLT: 41). Without religious

conviction a personal will have incomplete knowledge of morality and, worse, will

not see it as the authoritative command of a law-giver. Consequently, “[t]hose are

not at all to be tolerated who deny the being of God. Promises, covenants, and oaths,

which are the bonds of human society, can have no hold upon an atheist. The taking

away of God, though but even in thought, dissolves all. (FLT: 47).14 Without God

there cannot be authoritative morality. Manifestly, then, Locke’s “freestanding”

argument does not stand free of religious belief. But it is a mistake to think — as

perhaps does Waldron — that a public reason argument, drawing on shared beliefs

to articulate and justify a conception of a common public world, must abstract from

all religious argument, or all conceptions of the good.15 Everything depends on the

18

society to which the account is being addressed. In our twenty-first century society,

where many do not hold religious convictions, an analysis of the public sphere that

made a necessary appeal to religion — a justification that only believers could accept

— would clearly be inadequate. But in Locke’s seventeenth century England, the

supposition of the basic tenants of Christianity could form a common basis for

reasoning: the vast majority plausibly accepted premises based on the most general

and basic beliefs of Christianity. Just as Rawls draws on common beliefs of a

democratic public, Locke could draw on common beliefs of a Christian public. It is

fundamental to a public reason view that the nature of the shared, public, beliefs

depend on the society being addressed. It is by no means a necessarily secular

approach to political justification. The first stage of a Rawlsian public reason

argument must abstract from the controversies that divide a society, about which

there is deep and continuing reasonable disagreement. In seventeenth century

England the critical dispute was among the divergent religious beliefs distinctive to

the followers of the Church of England, a wide array of dissenting Protestants

(groups ranging from Quakers and Shakers to Methodists and Presbyterians) and

Roman Catholics. 16 It is from these disagreements from which a public reason

doctrine structured along the Rawlsian two-staged argumentative strategy must

prescind.

VII LOCKE’S INSULATION THESIS AND ITS FAILURE

The way in which morality straddles the political/religious divide is not, then

inconsistent with Locke advancing a public reason theory with a Rawlsian two-stage

structure (though, of course, not one with a Rawlsian content): (i) the shared

argument which stands free of the society’s doctrinal disputes and (ii) an

overlapping consensus justification in which each member of the society affirms the

political argument from her own, controversial, religious viewpoint. However, I

think it is clear that Locke’s insistence that morality depends on religious

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undermines the fundamental claim of his theory: that we can identify a shared

reasoning in the public sphere that can be insulated from our disputes about private

matters, and in Locke’s case, crucially religious disagreement.

For the political doctrine I explicated in sections III and IV to be viable, there

must be a basic shared understanding of the laws of nature and what they call for.

Recall that Locke argues that there are limits to the authority of the public umpire,

and that there will be a general consensus about when these limits are exceeded. If

there is not such a consensus, there will always be significant groups claiming that

the umpire has exceeded its authority, that it has strayed outside the bounds of a

reasonable interpretation of the laws of nature. In his theory of revolution Locke is

especially worried about that charge that individuals will take umbrage and rebel,

and his answer is that “the people shall judge” whether the umpire has exceeded its

authority (ST: §240). But this sort of collective decision presupposes a general

consensus, and such a consensus arises from a broad consensus about the demands

of the laws of nature. For such a broad, general, consensus, to persist, the

population’s beliefs about the laws of nature and their requirements must be

relatively insulated from their deep and widespread doctrinal disputes.

I have argued elsewhere that Hobbes insisted that beliefs about political right

could not be insulated from religious disputes, and that is why he rejected the idea

of a private sphere in which religious groups could freely practice and espouse their

doctrines.17 Locke’s insistence that morality presupposes religious belief imperils his

own attempt to insulate the political from the religious disagreement. Different

religions advance vastly different interpretations of the Bible as well as their

different views of the sources of religions truth. The Fifth Monarchy Men, who arose

during the English Revolution, interpreted Daniel’s dream (Dan. 7) as indicating that

there would be five great legitimate monarchies: the last of which would be that of

Christ. They believed that the fourth monarchy, the Roman Empire, had been

overturned by the Church of Rome, and so were awaiting the fifth monarchy: the

20

reign of Christ. Consequently, on the basis of their reading of the Bible they denied

the legitimacy of all states between the Roman Empire and the Reign of Christ —

and so for the time being were anarchists. Less radically, Roman Catholics disagreed

with Protestants such as Locke about the source of religious authority, viewing

Church tradition as a source of authority equal with scripture. Catholics pose an

especially thorny problem for Locke. In a number of places in his Letters on Toleration

Locke seems to include Roman Catholics (usually referred to as “papists”) in his

arguments, as a view of Christianity like others that ought to be tolerated (FLT: 40,

55; SLT: 102, 118; TLT: 147, 219, 229, 231, 280, 301, 322, 400, 528). Yet it is typically

thought that Locke was unwilling to extend toleration to Roman Catholics when he

writes: “Another more secret evil, but more dangerous to the commonwealth, is

when men arrogate to themselves, and to those of their own sect, some peculiar

prerogative covered over with a specious show of deceitful words, but in effect

opposite to the civil rights of the community…. What can be the meaning of their

asserting that ‘kings excommunicated forfeit their crowns and kingdoms?’ It is

evident that they thereby arrogate unto themselves the power of deposing kings:

because they challenge the power of excommunication as the peculiar right of their

hierarchy” (FLT: 46). It is hard not to see this as aimed at Roman Catholicism. In his

early nineteenth century introduction to John Fox’s Book of Protestant Martyrs, for

example, the Reverend John Milner took this passage from Locke as a warning of the

“dangerous and unbounded influence of the Romish clergy.”18 Overall, it is probably

best to read Locke as holding that, as a body of religious doctrine, Roman

Catholicism should be tolerated along with other forms of Christianity and Judaism,

but not when it claims — as Popes did — an authority to cancel citizens’ obligation

to civil government. 19 A religion that does not itself respect the insulation of religious

belief from political right and obligation, Locke concludes, cannot be tolerated.

And here lies the problem: because Locke insists that civil government concerns

the public adjudication of disputes about morality and natural law, and he insists

21

that reason unguided by religious faith cannot discover the full content, and

authoritative nature, of morality, religious belief cannot be insulated from the civil

sphere. If Christianity is necessary to understand the law of nature, non-Christians

will not have a proper understanding of the disputes that the civil magistrate is

seeking to adjudicate, and so will not have a proper grasp of the reasonable bounds

of these disputes. And presumably Catholics will also fail to have a proper grasp, as

their understanding of natural law will be heavily influence by Church tradition

(including decisions of Church councils), a consideration absent from Protestant

interpretations. And it is but a short step to conclude that the many Protestant sects,

which radically disagree about some key parts of scripture, will also have deep

differences about the content of natural law and God’s commands (think again of the

Fifth Monarchy Men).

It is important to stress that the worry is not simply that we disagree about

morality. A power of Locke’s account is that he directly focuses on such

disagreement in his theory of public adjudication. The very point of government, we

have seen, is that people will disagree about natural rights and natural laws. Locke,

however, focuses on the distortions caused by self-interest in judging in one’s case,

not on deep and fundamental disagreements about the content of natural law.

Indeed, Locke’s liberal theory of public reason, which requires that the umpire only

has authority to adjudicate within some reasonable range of disputes, requires a

broad consensus among citizens to identify this range. The problem posed by

Locke’s doctrine that natural reason, shorn of religious belief, cannot reveal the

complete content of natural law is that it dissolves the barrier between civil and

religious dispute that his theory of public reason was meant to erect.

IX CONCLUSION: LOCKE’S INSIGHT AND PROBLEM FOR LIBERAL THEORIES OF PUBLIC REASON

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Locke’s insulation thesis, I have argued elsewhere, has been absolutely critical to

most liberal theories of public reason, including that of John Rawls.20 The heart of

two-staged liberal theories of public reason is to distinguish those political or civil

matters about which there is broad agreement, and construct a theory of justice, or

political right, on their basis. We need such a shared basis for thinking about justice,

these liberal theorist of public reason have insisted, because we have such deep and

wide disagreement over matters of religion, moral ideals, metaphysical convictions

and so on, we must forge shared terms on which to live. For this project to succeed,

these deep and wide disagreements must not invade the public sphere, for then the

broad consensus, upon which such public reason theories depend, will dissolve into

the very conflicts that it sought to set aside. Thus the need for what I have called the

insulation thesis. Locke’s great insight — which, alas, was also the undoing of his

theory — was that our moral convictions are not freestanding from our broader

commitments. Locke’s hope, I think, was that there was enough consensus in

Christian civilization about these matters that all Christians would agree about the

broad contours of the public sphere. Atheists had to be excluded, but that was not a

significant exclusion. But the uneasy place of Roman Catholics pointed to the

problem. On the one hand Locke sought to include them in the broad Christian

consensus, and on strictly theological issues they appeared to qualify for toleration.

But then — without explicitly naming them, but identifying a doctrine long

associated with Roman Catholics (after all, Henry the VIII was excommunicated) —

a Church with a doctrine which says that its clergy has the authority to deny civil

honor (obedience) to the magistrate is not due toleration. But that is simply a case

where its religious tenets carry over into civil morality. It is not just Catholicism,

however, that bridges the public private divide: indeed Locke has shown that it

must be bridged.

One might think that Locke could have avoided all of this by simply supposing

— as most of his contemporary followers have — that secular reason, is complete in

23

itself and needs no supplement from religious belief. But those contemporary

followers cannot explain why there should be such consensus on natural rights and

law: they often blithely assume it, though most of their fellow political philosophers,

do not concur. Locke hoped that the broad agreement of Christian civilization could

provide the foundation of the consensus while he sought to prevent its deep

disagreements from undermining it. The trick, as it were, is to get sufficient

consensus in the public sphere to define the limits of public reason while insulating

this consensus from private disputes. We should not disparage Locke for failing — I

am doubtful whether anyone has succeeded.

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Notes

1 See Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), pp. 10-

11

2 All references to Locke’s writings are from The Works of John Locke in Nine Volumes,

twelfth edition (London: Rivington, 1824). The following abbreviations are used in

the text. FT: First Treatise of Government vol. 4 (by section); ST: The Second Treatise of

Government, vol. 4 (by section); FLT: First Letter on Toleration, vol. 5; SLT: Second Letter

on Toleration, vol. 5; TLT: Third Letter on Toleration, vol. 5; RC: “The Reasonableness of

Christianity,” vol. 6; STE: Some Thoughts Concerning Education, vol. 8.

3 The most famous of these is, of course, Nozick, Anarchy, State and Utopia, Part I. For

an overview, of responses, see Eric Mack and Gerald Gaus, “Classical Liberalism

and Libertarianism: the Liberty Tradition” in Handbook of Political Theory, edited by

Gerald Gaus and Chandran Kukathas (London: Sage, 2003): 115-130.

4 See A. John Simmons, On the Edge of Anarchy: Locke, Consent and the Limits of Society

(Princeton: Princeton University Press, 1993), esp. pp. 260-69.

5 Nozick, Anarchy, State and Utopia, pp. 10-11.

6 And: “To avoid this state of war (wherein there is no appeal but to heaven, and

wherein every the least difference is apt to end, where there is no authority to decide

between the contenders) is one great reason of men’s putting themselves into

society, and quitting the state of nature: for where there is an authority, a power on

earth, from which relief can be had by appeal, there the continuance of the state of

war is excluded, and the controversy is decided by that power” (ST: §21).

25

7 As Jeremy Waldron notes, Locke makes this point “again and again.” God, Locke and

Equality: Christian Foundations of Locke’s Political Thought (Cambridge: Cambridge

University Press, 2002), p. 65.

8 It is because private judgment must be relied on when citizens ask whether the

public authority has stepped beyond its authority, and is no longer performing its

designated task, that Jean Hampton insists that Hobbes’s contract ends up as a

Lockean one. Whereas Hobbes seeks to entirely exclude private judgment, Locke

admits that citizens must rely on it in these cases. See her Hobbes and the Social

Contract Tradition (Cambridge: Cambridge University Press, 1986), chap. 7.

9 John Rawls, Political Liberalism, expanded edition (New York: Columbia University

Press, 2005), pp. 12, 144, 387. For a sketch of Rawls’ argument, see my essay “The

Turn to a Political Liberalism” in The Blackwell Companion to Rawls, edited by David

Reidy and Jon Mandle (New York: Wiley-Blackwell, 2014), pp. 235-50.

10 Ibid., pp. 387ff.

11 Waldron, God, Locke, and Equality, especially pp. 81, 236ff.

12 Recall from our opening sketch, that the state of nature is a condition of “equality,

wherein all the power and jurisdiction is reciprocal, no one having more than

another; there being nothing more evident, than that creatures of the same species

and rank, promiscuously born to all the same advantages of nature, and the use of

the same faculties, should also be equal one amongst another without subordination

or subjection” (ST: §4).

13 As one might well have concluded from the passage from the Second Treatise cited

above: “The state of nature has a law of nature to govern it, which obliges every one:

and reason, which is that law, teaches all mankind, who will but consult it, that

26

being all equal and independent, no one ought to harm another in his life, health,

liberty, or possessions” (ST: §6).

14 See further Waldron, God, Locke and Equality, chap. 8.

15 Ibid., pp. 236-7.

16 I return to Catholics in sections VII and VIII.

17 “Hobbes’ Challenge to Public Reason Liberalism,” in Hobbes Today: Insights for the

21st Century, edited by S.A. Lloyd (Cambridge: Cambridge University Press, 2013),

pp. 155-177.

18 John Fox, An Universal History Of Christian Martyrdom: Being a Complete and

Authentic Account of the Lives, Suffering, And Triumphant Deaths of the Primitive As Well

As Protestant Martyrs In All Parts of the World, from the Birth of Our Blessed Savior to the

Latest Periods of Pagan and Catholic Persecution Together with a Summary of the Doctrines,

Prejudices, Blasphemies, and Superstitions of the Modern Church of Rome with notes,

commentaries by J. Milner (London: B. Crosby and Co, 1807), p. x. Emphasis added.

19 For doubts, see Waldron, God, Locke and Equality, pp. 218-23.

20 “Public Reason Liberalism” in The Cambridge Companion to Liberalism, edited by

Steve Wall (Cambridge: Cambridge University Press, 2015: 112-40).